Additional comments on the Presi­dent's veto powers

Preserving executive independence

Two functions of veto power

The veto power has two functions, a) preserving the exe­cutive as a power
separate from the legislature, and b) providing the citizens with a defense
against pressure groups in the legis­lature. This second function, which has
been expanded, effectively sets the President up as the third house of the
legislature.

The veto power is indispensable when it comes to preserving the President's
independence. Since time immemorial the legis­latures of the world has tried to
put themselves in the place of the executive. There is not necessarily anything
sinister in this. On the contrary, this was how modern democracy came into
existence. Even today, these encroachments come about not necessarily because of
the legislature's lust for power as such, but as a natural function of their
interest in politics and their attempts to guide society in the perceived, most
advantageous direction. It is a bias built into the system. It cannot be
prevented, but only alleviated through other, if possible equally strong,
counteracting forces.

By giving the President a veto power, he is given the means with which to
defend himself and his office from being reduced to a pawn of the legislature,
and through the ordinary course of human nature, i.e. wanting to preserve his
own independence and importance, he can fairly safely be relied on to exercise
this power.

The value of flexibility

When the veto power was introduced into the presidency through the U.S.
Constitution it was limited in comparison to the British monarch's veto which
was the reference known to the founders. Instead of having an absolute veto,
like the king of Great Britain, the President was given a limited veto that
could be overturned by a two thirds' vote in each house of congress. The framers
of the American Constitution believed that a limited veto would be put to more
active use than an absolute veto, and by being put to more active use it would
be in reality if not nominally, more effective. By comparing subsequent
political developments in Britain and the U.S., we can see that this belief in a
limited veto was justified.

A digression on the value of flexibility in a European context

The lesson taught us by the history of the veto power is also applicable to
the current state of affairs in the European Com­munity, and ought to be a
cause for concern. Today, if a decision of the community is perceived to be
contrary to the vital national interests of one of the members, that country may
veto the decision. In effect, each member government has an absolute veto on
Community decisions. However, since this veto is ab­solute, and since it is
binding on all members its function is very much like that of the traditional
veto powers of the British sovereign.

Is it going to go the way of the British royal veto ? Yes, this is the most
likely outcome. It is fairly obvious to any observer, that there is an
increasing reluctance on the part of member countries to exercise their veto
powers. More and more the veto power itself is perceived only as a
bargaining tool. This is the first step. After a little while, the bargaining
tool loses its efficacy however, as the implied threat becomes less and less
credible. (Perhaps this is already taking place.) Finally the power itself loses
its practical value as the institution rendering the veto is overwhelmed (by
Parliament in the case of the British King, by the European commission in the
case of the national member countries of the European Community).

The European community veto power can only be sustained, on two conditions:

It has to be flexible, i.e. line item rather than whole bills, extending
only to the member in question and thus not preventing the rest of the
community from introducing the legislation, and

As far as possible or eventually it has to be wielded by a group that is
resistant to bargaining and legislative coalitions, i.e. the people itself.

Introducing flexibility in presidential vetoes

Returning to the confederate President; Experience has shown that even more
flexibility than that accorded the American President is needed. By bundling
together ever more issues in one bill, Congress has made it harder and harder
for the U.S. President to exercise his veto powers effectively. He cannot
distinguish between the parts he likes and the parts that he doesn't like. He
has to approve or disapprove the bill in its totality. What makes it even
harder, is that Congress has tended to insert especially objectionable parts
into bills (continuing resolutions and debt ceiling legislation) that the
President cannot veto unless he wants the government to grind to a complete
stop. For natural reasons, the President is reluctant to force the issue by
shutting down government, and so there has been a steady erosion in executive
power, in the same way, but at a slower pace, than in Britain. If a confederate
President is to preserve his independence, he has to be given more flexible
powers than the U.S. President.

Line item veto

One option, much discussed in the U.S. and already conferred on many American
governors, is the line item veto. This is the ability to veto one or more lines
or parts of a bill. The line item veto enables the President to defend himself
against the bundling of issues, and effectively restores to him the veto power
lost through such tactics. In continuing resolution bills, he can veto the
objectionable parts without stopping government.

Constitutional sunset clause

Another method of strengthening the veto power is by giving the President a
fresh opportunity from time to time, or rather by giving new Presidents the
opportunity of correcting the mistakes or compromises of previous Presidents.
(See Section
10.4 Sunset clause.)

Even with a line item veto, no Pres­ident will veto all items encroaching on
presidential powers. Most Pres­idents have their own political program, and
will be willing to make sacrifices to ensure the goodwill of the legis­lature,
or even to make an outright comp­romise with the legis­lature to ensure the
passage of ap­propriate legislation. During the term of a single President,
this is not a problem. But over time, it means that legislation is a one way
street, as it piles up and whether this happens fast or slow, it steadily erodes
the powers of the executive at the expense of the legislature. If allowed to
pile up indefinitely, the exec­utive is again reduced to a pawn.

The veto as a defense against pressure groups

The legislature as a collection of special interests

The other reason, and perhaps the most important reason for granting the
President veto powers is to provide the citizens with a defense against special
interests. Since the President is elected by the whole population, he is much
more vulnerable to charges of favoritism than individual representatives and
senators. In fact, representatives and senators, are in many instances expected
to work in favor of special interests. They are all elected from geographical
districts, and they are expected to defend the interests of those districts in
the legislature. Theirs are the interests of the special interests.

The President, on the other hand, cannot get elected or re-elected if he
consistently favors one region or one special interest. By the way he is chosen,
he has to be more aware of the interests of the whole rather than the parts.
Although imperfect, the President on a day to day basis, is expected to do to
the smaller issues, what the people can do to the larger issues through the
instru­ments of Initiative and Referendum. He is the representative of the
whole people and not its constituent parts.

Special interests and appropriations

In addition to strengthened veto powers, the author also proposes
strengthened powers to deal with the accumulated effects of special interests in
the field of appropriations, i.e. the tendency for governments to run ever
increasing budgetary deficits. This is a special problem, not separate from
those of legislation generally, but sufficiently serious and obvious to warrant
special attention. Several sections and subsections deal with this issue.

Most obviously; there has to be a yearly confederate budget, it has to be
honest, and it has to be balanced.

The Confederation may only run a deficit if it is approved by a two-thirds
majority of both houses of Congress. This last condition gives a way out for
those special circumstances when a deficit may be appropriate, but it makes the
decision subject to a Presidential veto that can only be overridden by a five
sixths majority.

Secondly, the President is given the power to enforce the balanced budget
requirement through reducing or eliminating appropria­tions. This is a less
crude method than the line item veto. By the reasoning above, this ought to make
it more effective. It has the added advantage that it can be employed as events
unfold during the fiscal year. If the budget has underestimated outlays, the
President may reduce or eliminate non-essential appropriations.

Appropriations may of course, be reinstated by Congress, but they must then
either be compensated for by reductions elsewhere, or be reinstated by a two
thirds majority, and possibly subjected to the President's five sixths majority
veto power.

Reconciling the case for a unitary independent executive with the Swiss
experience

This book advocates the case of a unitary independent executive, a powerful
elected President. How then, it might be asked, explain the success of a plural
executive like the one found in Switzerland ? The explanation is simple enough.
The success of the Swiss system in all probability does not rest with its plural
executive, but with its system of referendums and initiatives. If we look to
other countries or organizations, Yugoslavia for instance, or the European
Community or the UN Security Council, we see how useless plural executives
become in times of crisis.

Switzerland of course, has not had a crisis of similar nature since its
introduction of the consensus executive. Also, it was only after the
introduction of the referendum and the initiative that the current Swiss
non-confrontational system of involving all major parties in the executive
evolved.

In fact the development of the plural executive in Switzerland, points to
another negative aspect of this system beyond its inability for effective action
in times of crisis.

Around the turn of the century, Switzerland, in the eyes of the parliamentary
majority, became almost ungovernable. Every time a politically controversial
proposal was put to the par­liament, the opposition would start a petition
drive and have the issue referred to the voters. The solution to this problem
turned out to be to include the opposition in the executive. It was hoped, and
this has turned out to be true, that by giving the opposition a stake in
government, they would "keep quiet".

The problem with this system is that it limits the choices of the voters. In
today's Switzerland the oppos­ition's teeth has been pulled so effectively that
they no longer, in many circumstances, act as an effective opposition. Thus
there is even in this country, a tendency of a division between "them"
(the federal politicians) and "us" (the rest of the population).
Typically enough, in recent years there have been a surge in initiatives and
referendums, but this time not sponsored by the minority parties in government,
but by outside groups and single action committees. The real opposition has thus
been transferred, as in so many other countries, from groups within the
Parliament, to groups somewhat opposed to and outside the normal political
process.

It is a tribute to the strength of the initiative and referendum processes
that in spite of these developments, Switzerland still has the most responsive
govern­ment in Europe. But it ought not be a goal in itself to provide our
political agents, the politicians, the means whereby they will be able to
insulate themselves, if only to a limited extent, from the opinions of the
public. A unitary independent executive will be able to preserve the diversity
of opinions within the central government, thereby facilitating rather than
limiting the political choice of the citizens.